One of the interesting aspects of being a lawyer is that you are always confronted with new situations and legal problems. Accordingly, I did not fully appreciate what I was in for at a federal court scheduling conference earlier last year when I indicated to the magistrate that I intended on deposing several National Park Service rangers who had investigated the death of my client’s son during the course of a hike at the Big Cypress Preserve.1 The tone of her warning, “Good luck with your Touhy request,” was ominous to say the least. My initial reaction was, “Who is this guy Touhy, and what am I supposed to request?”

It turns out that Touhy was an inmate in the Illinois State penitentiary who filed a habeas corpus proceeding in federal court alleging a violation of his due process rights by the warden before I was even born. During the proceeding, Touhy served a subpoena upon an FBI agent seeking the production of various Department of Justice files, which he contended would prove that his conviction was obtained by fraud. When the FBI agent refused to turn over any of the records requested based upon administrative regulations promulgated by the Department of Justice governing the production of records, the judge found him in contempt and sentenced him to the custody of the attorney general.

The U.S. Supreme Court subsequently affirmed the circuit court’s reversal of the trial judge’s action, holding that Congress had given administrative agencies the authority to prescribe regulations for the custody, use, and preservation of their records by the adoption of 5 U.S.C. §22 (now 5 U.S.C. §301) and that the Department of Justice regulations relied upon were a valid exercise of this power.2 Subsequently, requests for documents and witnesses became thereafter known as “Touhy requests,” a nickname perpetuated by the courts in reviewing the denial of such requests.

Practical Considerations The first step in the process is to check the agency’s “Touhy” regulations. Typically, they will require a formal written request identifying the proposed agency witnesses and the areas of testimony. The regulations will also set forth a number of specific factors, which the agency is required to consider in reviewing a Touhy request. The best practice is to address specifically each of the factors set forth by the agency in the written request.3 It is also important not to rely simply on conclusory statements of applicability, but to set forth in detail the facts supporting the reasons why it is contended that each of the specific agency factors should be construed to allow the witness to testify.4

Another helpful hint to keep in mind is that one does not need to live or die on the basis of their initial Touhy request. The Touhy request can be an evolving process in which the original written request is supplemented and modified during the course of discussions and communications with the agency.5 In fact, it is a good practice to try and meet each of the agency’s objections through the use of supplemental written Touhy requests, so the record that arrives at the court contains sufficient facts to support the request.6

Since the “default” position for most agencies is to deny the production of witnesses for actual testimony, expect to have to litigate this issue. Try to make your Touhy request as early as possible in order to leave sufficient time to complete the process prior to discovery cut offs and other court-imposed deadlines.

Scope of Judicial Review Two differing standards for reviewing the denial of Touhy requests have developed among the circuits in cases pending in the federal courts.7 Some courts have concluded that the issue is governed by the application of the much more liberal discovery provisions contained in the Federal Rules of Civil Procedure, which tend to favor the allowance of such testimony. Others, however, have utilized the restrictive “arbitrary and capricious” standard of the Administrative Procedure Act (APA) found in 5 U.S.C. §706,8 which more often results in upholding agency determinations refusing to allow employees to testify. Interestingly, both lines of cases cite to the 11th Circuit’s opinion in Moore v. Armour Pharmaceutical Co., 927 F.2d 1194 (11th Cir. 1991), in support of their positions.

The leading case in support of utilizing the discovery provisions of the Federal Rules of Civil Procedure to define the scope of review is the Ninth Circuit’s opinion in Exxon Shipping Co. v. U.S. Department of Interior, 34 F.3d 774 (9th Cir. 1994). In reversing the Department of Interior’s application of its Touhy rules, the court rejected the agency’s argument that it was immune from having to comply with third-party discovery requests by virtue of its sovereign immunity, since this “argument would also violate the fundamental principle that ‘the public . . . has a right to every man’s evidence.’”9

The court went on to further conclude that:

Section 301 does not, by its own force, authorize federal agency heads to withhold evidence sought under a valid federal court subpoena.10

While recognizing the broad scope of the full discovery allowed by the Federal Rules of Civil Procedure, the Ninth Circuit also acknowledged that the government had legitimate concerns regarding the use of its employee resources. After discussing the 11th Circuit’s analysis in Moore of the manner in which both interests could be preserved under the Federal Rules of Civil Procedure, it held:

Section 301 does not create an independent privilege to withhold government information or shield federal employees from valid subpoenas. Rather, the district courts should apply the federal rules of discovery when deciding on a discovery request made against government agencies, whether or not the United States is a party to the underlying action. Under the balancing test authorized by the rules, courts can ensure that the unique interests of the government are adequately considered.12

This approach has also been adopted by the D.C. Circuit and various district courts.13

The Fourth Circuit has been the leading proponent of the proposition that under principles of sovereign immunity, the only authority to require a nonparty federal agency to produce witnesses following the denial of a Touhy request is through the Administrative Procedure Act, under which such denials must be evaluated using the APA’s “arbitrary and capricious” standard.14 The Second Circuit originally adopted the Fourth Circuit rule in U.S. v. General Electric, 197 F.3d 192 (2d Cir. 1999), then expressly retreated from this position on rehearing,15 leaving the issue for a later day, which more than a decade later has still not come.16

Although several opinions from other courts have placed the 11th Circuit among those following the APA standard,17 a close reading of Moore does not necessarily compel such a conclusion. After observing that administrative regulations may clash with the “Federal Rules of Civil Procedure [which] strongly favor full discovery whenever possible,”18 the 11th Circuit went on to hold that an agency “cannot put a blanket ban on all requests for testimony.”19

In an effort to strike the appropriate balance between the judicial system’s need for full discovery and the agency’s need to conduct its business, the 11th Circuit looked to both the provisions of the discovery rules and the APA, noting that each provided a mechanism for protecting such interests. In this regard, it pointed out that under Rule 45(b), a court is empowered to “quash or modify [a] subpoena if it is unreasonable and oppressive.” It then looked to the provisions of 5 U.S.C §706, which set forth a number of grounds upon which an agency’s action can be overturned, including where it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”20 Based upon the specific facts before it, the court concluded that the agency’s denial of the Touhy request in Moore was supported under the circumstances,21 but made it clear that such agency denials may not be sustained when they are unsupported by the evidence and facts in a particular case.

Although “the arbitrary and capricious standard is exceedingly deferential,”22 it does not give agencies unfettered discretion. Therefore, an agency’s rejection of a Touhy request will be considered arbitrary and capricious if it is merely a pro forma conclusory denial23 as “[m]ore is required from federal agencies. They ‘must examine the relevant data and articulate a satisfactory explanation for [their] action including a “rational connection between the facts found and the choice made.”’”24

Likewise, an agency’s action will also be considered arbitrary and capricious when it

relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.25

In applying this standard, the district court in U.S. v. Walker, 2009 WL 2611522 (M.D. Ga. Aug. 21, 2009), found an agency’s “unsubstantiated and subjective belief that [its employees] possess no relevant information [is] arbitrary and capricious,” where there was clearly evidence before the court to the contrary. Thus, the discretion afforded to agencies in assessing Touhy factors does not mean that courts are required to accept explanations for agency decisions “that run counter to the evidence before the agency,” or which are “implausible.”26

Review Procedures Agency regulations typically do not set forth any procedures for judicial review of their actions in denying a Touhy request. Requests for judicial review have, therefore, taken many different forms. Since different courts have taken varying approaches in analyzing such actions, there is a lack of clarity regarding the precise judicial procedures to be used in challenging an agency’s denial of a Touhy request.

For example, in Moore,27 the agency’s action was analyzed in the context of a motion to quash a subpoena, which had been issued after the agency’s refusal to voluntarily produce its employee for deposition. In Boca Raton Community Hospital Inc. v. Tenet Healthcare Corp., 2006 WL 1523234 (S.D. Fla. April 24, 2006), on the other hand, the issue arose on an “appeal” of the agency’s denial addressed to the district court in which the underlying case was pending.

Another approach altogether was attempted in Watts v. Securities and Exchange Commission, 482 F.3d 501 (D.C. Cir. 2007), in which an appeal was filed with the D.C. Circuit Court of Appeals under SEC statutes allowing direct appeals of SEC “orders.” The court rejected this procedure, however, concluding that the agency decision was instead a routine “litigation action,” which must be heard by the district court under the auspices of Fed. R. Civ. P. 45. In reaching this conclusion, it rejected the contention that the agency action should be treated as an APA action.28

In Barnett v. Illinois State Board of Illinois, 2002 WL 1560013 (N.D. Ill. July 2, 2002), it was held that while courts within the Seventh Circuit were bound to utilize the APA’s arbitrary and capricious standard that the review could be performed by filing a motion in a pending case, rather than having to initiate a separate action.29 Although the Second Circuit has yet to take a definitive position on whether the APA standard is applicable to determine the validity of Touhy denials, it, too, has concluded that review may be sought by motion as a separate action would only create time-consuming additional litigation and produce unnecessary delay.30

The circuits generally seem to agree, however, that whatever judicial procedure is to be used, as a condition precedent the party seeking review of an agency’s denial must first exhaust its administrative remedies by obtaining a final agency determination on its request.31 This requirement, however, is satisfied by merely having the agency deny the request in a letter.32

Agency Touhy Criteria Although each department has its own criteria, those adopted by the Department of Interior (DOI) are typical. The DOI utilizes nine factors for consideration in responding to Touhy requests, which are set forth in 43 C.F.R. §2.88. These factors are:

1) The ability to obtain the testimony from another source.

2) The appropriateness of the testimony under relevant federal law.

3) The effect on the National Park Services’ ability to conduct its official business unimpeded.

4) The effect on the National Park Services’ ability to maintain impartiality in conducting its business.

5) The effect on the National Park Services’ ability to minimize the possibility that it will become involved in issues that are not related to its mission and programs.

6) The effect on the National Park Services’ ability to avoid spending public employees’ time for private purposes.

7) The effect on the National Park Services’ ability to avoid the negative cumulative effect of granting similar requests.

8) The effect on the National Park Services’ ability to ensure that privileged or protected matters remain confidential.

9) The effect on the National Park Services’ ability to avoid an undue burden on it.

In analyzing these factors, there are a number of considerations to keep in mind. First, the primary factor in most agency Touhy requirements is the ability of the litigants to obtain the requested information through other alternative sources. Therefore, the underlying source of the witnesses’ knowledge and his or her potential relationship to the specific case is generally of critical importance.

For example, in Moore, the potential witnesses were agency physicians involved in HIV research projects for the CDC, whose expertise the plaintiffs sought to utilize to advance their unrelated civil litigation. The plaintiffs essentially sought to use them as unwilling expert witnesses.

In our case, however, the witnesses were park rangers who performed a formal DOI investigation in the course and scope of their duties into the death of my client’s son during a hike conducted on a federal preserve. The rangers were, therefore, fact witnesses,33 whose information was acquired through the DOI’s exercise of its statutory responsibility to investigate the facts surrounding this incident, which occurred on its property. As a result, the proposed inquiry was directly related to the specific obligations undertaken by the DOI in investigating this accident. The Touhy request was supported by a number of the DOI’s criteria (such as the inability to obtain the information from another source and a relationship to the agency’s mission), which did not exist in Moore. Thus, each case has different policy concerns regarding the needs and justifications for the testimony.

Although attorneysoften attempt to cast a wide net in discovery to avoid missing relevant information, the more limited and specific the Touhy request, the more likely it will be to succeed at either the agency or court level. When the proposed inquiry is narrow, the agency has less of a basis to contend that the request is interfering with its ability to conduct its business (DOI factor 3) or that public employees’ time is being spent for private purposes (DOI factor 6). The impact on the public treasury can be further reduced by offering to reimburse the agency for the employee’s time or offering to take the deposition after normal working hours or on a weekend.34 The negative impact on the employee’s time can also be minimized by stipulating that the deposition is being taken to preserve the testimony for trial, so that the witness will only be required to testify on one occasion.

While most attorneys do not want to tip their hand in advance of a deposition by providing the other side with advance notice of the specific areas of inquiry, some opinions have essentially required the requesting party to virtually provide a script of the proposed questioning.35 This allows both the agency and the court to analyze the application of the applicable factors to the proposed witnesses’ testimony.36

The nature of the case is also an important factor. In Moore, which involved claims of defective medications used to treat what the court described as “an epidemic,” the agency was concerned about having to make its scientists available for numerous other lawsuits. Although other courts have also given great weight to legitimate agency fears about opening the door to future testimony in other similar cases,37 some courts have concluded that this is not a proper concern, instead concluding that it should be left up to the courts in such future cases to make their own determination.38 When, however, the case involves a single, isolated, specific, discrete event, such as the investigation of an accident occurring in a national preserve, allowing the provision of limited testimony generally will not subject an agency to a barrage of requests for its employees to testify.

The agency’s involvement in a case, even when it is not a formal party, may also have significance. In Florida and some other states, in which traditional principles of joint and several liability have been modified, defendants are permitted to point the finger at nonparties and seek an apportionment of damages based upon their purported culpability. For example, in our case, the defendants argued that the NPS was negligent for allowing the group’s leaders to hike in the preserve on the day of the incident and in failing to respond timely to the leaders subsequent calls for help.

When such defenses are permitted under the applicable law, it may be necessary to have the agency “defend itself” by producing employees to present their side of the story. By “defending its honor” in this fashion, the agency is contributing to its mission and programs, since unrebutted attacks on the competency and integrity of its employees will damage its ability to perform its core functions. In overruling the FDA’s rejection of a request for private litigants to depose several of its employees in connection with statements they allegedly made to one of the parties that were relevant in the case, the court in In re U.S. Bioscience Securities Litigation, 150 F.R.D. 80, 82 (E.D. Pa. 1993), observed: “The FDA certainly has an interest in preventing misrepresentations about its approval process, and in assuring the truthfulness of representations to the public by public companies, about the efficacy of drugs for which FDA approval has been sought.”39

Agencies will often argue that the litigants can obtain the substantial equivalent of their employee’s testimony through the production of written agency reports, records, and other documents or sometimes even affidavits.40 Some courts have accepted these contentions by simply concluding that the agency’s conclusion is entitled to deference without any real analysis of whether the written documentation in fact constituted an adequate substitute for the employee’s testimony.41Other courts, however, instead have engaged in a meaningful analysis weighing the need and effect of proposed live testimony versus the offered documentary evidence in the context of the specific issues in the case and the reasons expressed supporting the need for the testimony.42

A number of courts have refused to accept boilerplate agency conclusions that the proposed testimony in private civil litigation will not serve a valid public interest simply because it is civil litigation between private parties seeking money damages. Where the plaintiff is seeking to enforce remedies granted by federal statutes, such as securities laws, some courts have rejected agency conclusions that a valid public interest in permitting the testimony does not exist.43 As noted by one court, “the ‘public interest’ does not exist in a vacuum isolated at the FDA’s offices in Rockville, Maryland.”44

Likewise, some courts have also rejected the contention that allowing an agency employee to testify at trial will affect its ability to remain “impartial” (DOI factor 4). These courts have concluded that by testifying as a fact witness, the employee is not taking sides on the merits of the case, but only letting the chips fall where they may.45

Conclusion Although obtaining the testimony of government witnesses can be a time-consuming process, it is possible in many cases to cut through the bureaucratic red tape and either compel or voluntarily obtain the agency’s cooperation. In our case, after spending months of letter writing responding to ever-changing agency objections and eventually filing a 20-page motion to compel in federal court, the agency agreed at the last minute to produce the requested employees for deposition. The agreement was then codified by agreed order to create an enforceable framework for the resulting depositions.

There are several important considerations to remember in going through the process. First, since there is not a single approved procedure for obtaining review of an agency’s denial of a Touhy request, the best approach is to utilize a multi-front attack. For example, after exhausting our administrative remedies by trying to convince the DOI through multiple letters, we simultaneously served subpoenas on the proposed witnesses and filed an appeal, in the form of a motion to compel, in the pending federal wrongful death action. This way there was less of a chance in getting knocked out procedurally before getting to argue the substantive issues.

Second, even if the court utilizes the Federal Rules of Civil Procedure for its scope of review, it is important to keep in mind that the parameters of permitted testimony will likely be much narrower than allowed in a typical discovery deposition. You will not be allowed to go in with “guns blazing” in pursuit of any relevant inquiry. Instead, the scope of the inquiry will be strictly defined and limited in advance, either by the agency or the court. Typically, the questioning will be strictly limited to factual matters.

Third, courts have shown a much greater tendency to limit the time allotted for such depositions.46 Therefore, you will likely have to finish your inquiry in less than the seven hours permitted by Fed. R. Civ. P. 30 (d)(1). It is also possible that you may only have one shot at taking testimony from the witness, since you may be required to utilize the deposition for the dual purposes of both discovery and preservation of trial testimony. As a result, it will be necessary to plan accordingly.

It is important to go into the process with realistic expectations and to frame your requests accordingly. Since the specifics of the requests will also likely define the scope of the deposition, assuming that you are successful, it is also critical to think through in detail the testimony you desire from the witness at the beginning of the process and to make sure that your requests cover all of these areas. Accordingly, one has to tread thoughtfully the thin line between being specific enough to satisfy administrative standards and likely court review, while at the same time being broad enough to cover all intended areas of inquiry.

Finally, it is of critical importance to pay attention to the agency rules and procedures and to establish that your request complies with them. In those cases where litigants have been successful in overturning agency denials of Touhy requests, they have established that the agency did not legitimately weigh and analyze its own factors. Sometimes this has been accomplished by challenging the agency’s method of analysis or the assumptions upon which its conclusions have been based. Other times, it has been necessary to limit or tailor a request to meet these rules.

1 All claims and issues in this case were subsequently amicably resolved by the parties.

7 Some courts have held that “legitimate issues of sovereign immunity may be implicated where federal courts are responding to state court subpoenas….” In re Packaged Ice Antitrust Litigation, 2011 WL 1790189 at *2 (E.D. Mich.) (emphasis in the original). See also State of Louisiana v. Sparks, 978 F.2d 226 (5th Cir. 1992).

37See also Solomon v. Nassau County, 274 F.R.D. 455 (E.D.N.Y. 2011) (allowing VA doctor to testify concerning treatment of plaintiff in an injury suit would open the door to similar requests in numerous different types of accident claims).

Robert D. Peltz is a Florida Bar board certified civil trial specialist practicing in the Miami office of Leesfield & Partners, P.A. He graduated from Duke University and the University of Miami School of Law. Presently in his second term as chair of the Maritime Law Association’s Cruise Lines and Passenger Ship Committee, his practice focuses on maritime, general personal injury, and commercial litigation in the federal and state courts.